RAIDING THE CONSOLIDATED FUND BY ATTRITION

[job]

June 2011 & September 2011 UNCONSTITUTIONAL WITHDRAWALS from the Consolidated Fund & Questionable Withdrawals for military excursion in Somalia.



Respective questions by Gwassi MP Hon. Mbadi & Garsen MP Hon. Mungatana addressed to the AG.


marstv.marsgroupkenya.org/?v=ZkuUoadnu7I

[job]

MINISTERIAL STATEMENT
Tuesday, 22nd November, 2011


UNCONSTITUTIONAL WITHDRAWAL OF FUNDS
FROM THE CONSOLIDATED FUND



The Attorney-General (Prof. Muigai): Mr. Speaker, Sir, a few weeks ago, the
Member of Parliament for Gwasi, hon. Mbadi, sought a Ministerial Statement from the
Attorney-General on the withdrawal of funds from the Consolidated Fund. He wanted the
Attorney-General to clarify whether the withdrawals from the Consolidated Fund
between the 1st and the 7th of September, 2011 had been made in accordance with the
provisions of the Constitution, and in particular Articles 206(2) and 221(6).



Mr. Speaker, Sir, Article 206(2) says:

“Money may be withdrawn from the Consolidated Fund only-

(a) in accordance with an appropriation by an Act of Parliament;”
Mr. Speaker, Sir, this presupposes a situation where every action taken by the
Executive through the Minister responsible for finance and by Parliament in passing the
Appropriations Act has been done within the prescribed period.

(b) in accordance with Article 222 or 223; or

(c) as a charge against the Fund as authorised by this Constitution or an Act of
Parliament.’


Article 222(1) says:

“If the Appropriation Act for a financial year has not been assented to, or is not
likely to be assented to, by the beginning of that financial year, the National Assembly
may authorize the withdrawal of money from the Consolidated Fund.”

Article 223(1) says:

“Subject to clauses (2) to (4), the national government may spend money that has
not been appropriated if-

(a) the amount appropriated for any purpose under the Appropriation Act is
insufficient or a need has arisen for expenditure for a purpose for which no amount has
been appropriated under the Act; or

(b) money has been withdrawn from the Contingencies Fund.”
Thirdly, money may be withdrawn as a charge against the Fund authorized by the
Constitution or an Act of Parliament.


Under Article 222 the Constitution then addresses itself to special circumstances
under which money can be withdrawn from the Consolidated Fund before the passage of
the Appropriation Bill and states in specific terms as follows:-
Article 222(1) says:

“If the Appropriation Act for a financial year has not been assented to, or is not
likely to be assented to, by the beginning of that financial year, the National Assembly
may authorize the withdrawal of money from the Consolidated Fund.”

Article 222(2) says:

“Money withdrawn under clause (1) shall-

(a) be for the purpose of meeting expenditure necessary to carry on the services of
the national government during that year until such time as the Appropriation Act is
assented to;

(b) not exceed in total one-half of the amount included in the estimates of the
expenditure for that year that have been tabled before the National Assembly; and.”
Article 223 then qualifies that the national Government may spend the money that
has not been appropriated in three instances these being:


First, that the amount
appropriated for any purpose under the Appropriation Act is insufficient or need has
arisen for expenditure for a purpose for which no amount has been appropriated under the
Act.


Secondly, that the money has been withdrawn from the Contingencies Fund or
thirdly, that if Parliament is not sitting or is sitting but adjourns before the approval has
been sought in which case the approval shall be sought within two weeks after it next sits.


The Constitution gives this House authority to approve spending of public money
in this matter within two months after the first withdrawal of the money.


This authority should be read in conjunction with the provisions that I have
mentioned above which is that Parliament must be sitting at the time.
Mr. Speaker, Sir, in the instance case brought to the attention of the House by the
hon. Member, the money in question was withdrawn on 14th June, 2011. The withdrawals
from the Consolidated Fund that the hon. Member has enquired about were made,
therefore, in strict compliance with the Constitution of Kenya.


The Appropriation Act for the Financial Year 1st July, 2011, to 30th June, 2012
had not been assented to at the time in question as provided under Article 222 of the
Constitution. The Government sought authority from Parliament through a Vote on
Account of Motion dated 14th June, 2011. Parliament gave its approval on 16th June,
2011. The consent of His Excellency the President was sought and obtained for this
particular Motion that was debated and approved by the House on 16th June, 2011,.


From all the information available to me, therefore, I am satisfied that all the
timelines required by the Constitution were complied with.
Thank you, Mr. Speaker, Sir.





Mr. Mbadi: Mr. Speaker, Sir, first of all, the main reason why I directed this
Ministerial Statement to the Attorney-General is because he is the legal advisor to the
Government.


I want to take the House to Article 206(2) which I mentioned in my statement.
This article talks about how money may be withdrawn from the Consolidated Fund. It
gives only three ways through which money may be withdrawn.


(a) Through an Appropriation Act passed by Parliament.

(b) In accordance with Article 222 or 223. For the benefit of the House Article
222 talks about Vote on Account and Article 223 is on Supplementary Appropriation.

(c) Finally, through the CFS. The fund may be authorized through the
Constitution or an Act of Parliament.


Mr. Speaker, Sir, the clarification I would like to seek from the Attorney-General
is that he talked about Article 222 which is the Vote on Account. I want to take him to
Article 222(1) which says if the Appropriation Act for a Financial Year has not been
assented to or is not likely to be assented to by the beginning of that financial year, the
National Assembly may authorize the withdrawal of money from the Consolidated Fund.


Mr. Speaker, Sir, I am particular about the specifics of the wording of this
particular provision. It talks of Appropriation Act not “assented to” or “not likely to be
assented to”. Article 221(6) which talks about the introduction of the Appropriation Bill
in the House says:


“When the estimates of national government expenditure, and the estimates
expenditure for the Judiciary and Parliament have been approved by the National
Assembly, they shall be included in the Appropriation Bill, which shall be introduced
into the National Assembly to authorize the withdrawal from the Consolidated Fund of
the money needed for the expenditure, and for the appropriation of that money for the
purposes mentioned in the Bill.”


By the time this House gave the approval on Vote on Account, the Appropriation
Bill had not been published. Therefore, the clarification I want to seek from the Attorney-
General, and I wish this statement came earlier because now I think even the memory of
the House is a bit blurred. This House had not debated the Estimates. We had not debated
the Estimates and, therefore, the Appropriation Bill had not been introduced to the House
yet we went ahead and passed the Vote on Account. The only way this House can pass
Vote on Account is when the Appropriation Act has not been assented to, and not when
the Appropriation Bill has not been introduced into the House.


Therefore, hon. Attorney-General, any amount that was withdrawn on the strength
of the Vote on Account, as the Government legal advisor, was it done procedurally? I ask
this because even next year we will still go through a Budget cycle. Could he clarify to
the people of Kenya that this House can give authority to withdraw funds on Vote on
Account even without giving approval on the Estimates and even before the
Appropriation Bill has been introduced in the House and even before it was published,
like it was the case this financial year?
Thank you.




Mr. Speaker: Is there anybody else who wants to seek a clarification?




Mr. Mungatana: Mr. Speaker, Sir, I wanted the Attorney-General to confirm
whether in the current engagement that the Kenyan nation has in Somalia those funds
which are being used are falling within the constitutional appropriations. That is on the
three categories that he has given us.




The Attorney-General (Prof. Muigai): Mr. Speaker, Sir, first, I am grateful to the
hon. Member for the clarification sought. As the hon. Member is aware, I came into this
office long after this set of circumstances had lapsed. The facts that I have presented are
not within my personal knowledge because they were informed to me by officers in my
Chambers. I now realise, with the supplementary issue raised, that there is a legitimate
query about that and I would like to seek time to reconcile the timelines with the
HANSARD so that I may do justice to that answer.




Mr. Speaker: Very well! Attorney-General, that makes good sense.




The Attorney-General (Prof. Muigai): Thank you, Mr. Speaker, Sir.




Mr. Speaker: When will you be ready?




The Attorney-General (Prof. Muigai): Mr. Speaker, Sir, I will be ready in a
week’s time. I am conscious that we are running out of parliamentary time for this
session.


As to the second Question by my noble learned friend, hon. Mungatana, I would
like to make a Statement on this if you so direct me in a session hopefully in the
Departmental Committee on Defence and Foreign Relations, where I may be in a better
position to elaborate because some of these matters are still very sensitive.




Mr. Mungatana: No! That is not satisfactory!




Mr. Speaker: Order, the Member for Garsen!




Mr. Mungatana: Mr. Speaker, Sir, what is not in order---




Mr. Speaker: I will determine whether or not it is satisfactory.




Mr. Mungatana: Thank you, Mr. Speaker, Sir. What is not in order is that I have
sought a very simple clarification. Are these appropriations within the three parameters of
the Constitution or not? It is a simple answer. If it will take one week for the other
clarification---





Mr. Speaker: Mr. Mungatana, your point is made!




Mr. Mungatana: Thank you, Mr. Speaker, Sir.




Mr. Speaker: Let the Attorney-General come up with that clarification in
addition to the one that he will be dealing with as sought by the Member for Gwassi. So,
a week away from today, the Attorney-General can speak to both matters.



ONE WEEK LATER
Tuesday, 29nd November, 2011

SEE BELOW

[job]

ONE WEEK LATER
Tuesday, 29nd November, 2011



UNCONSTITUTIONAL WITHDRAWAL OF FUNDS FROM
CONSOLIDATED FUND



Mr. Mbadi: Mr. Temporary Deputy Speaker, Sir, mine is just a follow-up. The
Attorney-General had promised to issue my Statement today.




The Temporary Deputy Speaker (Mr. Imanyara): You have reminded me; there
is actually a request made in writing by the Attorney-General that he is part of the
Kenyan delegation to some official trip and he has requested that all matters relating to
his office for this week be deferred to next week. I have consulted and indeed established
that that is the position and I agreed that matters relating to the office of the Attorney-
General will be deferred to next week. However, you may request for a specific date next
week.




Mr. Mbadi: Mr. Temporary Deputy Speaker, Sir, since it is due today Tuesday,
then I would only request for Tuesday next week.




The Temporary Deputy Speaker (Mr. Imanyara): Deputy Leader of
Government Business, is Tuesday alright?




The Minister for Transport (Mr. Kimunya): Mr. Temporary Deputy Speaker,
Sir, I would have preferred it later than Tuesday but we can try. I hope he will have come
back by then.




The Temporary Deputy Speaker (Mr. Imanyara): Let us not try, we want a
specific answer.





The Minister for Transport (Mr. Kimunya): Thursday next week.




The Temporary Deputy Speaker (Mr. Imanyara): Alright, Thursday next week!

[job]

THE FOLLOWING WEEK

Tuesday, 13th December, 2011


UNCONSTITUTIONAL WITHDRAWAL OF FUNDS
FROM THE CONSOLIDATED FUND



Mr. Mbadi: Mr. Temporary Deputy Speaker, Sir, I also expected a Statement
from the Attorney-General with regards to the issue of withdrawals of Government funds
in this financial year before the Appropriation Act was assented to. The Attorney-General
was supposed to bring this Statement last week. However, he was not in the House. I
expected it today. I saw the Attorney-General, but he has not given any indication that he
has the Statement.




The Assistant Minister, Ministry of State for Provincial Administration and
Internal Security (Mr. Ojode): Yes, it is, indeed, true that the Attorney-General was
here. But knowing very well that he was out of the country on official duties, let me
remind the Attorney-General tomorrow, so that he could give the Statement on Thursday,
afternoon.




The Temporary Deputy Speaker (Mr. Mungatana): Mr. Mbadi, please, note that
the Statement will be delivered on Thursday at 2.30 p.m. by the Attorney-General.

[job]

Today Thursday, 15th December, 2011 –


DID THE ELUSIVE AG FINALLY DELIVER THE STATEMENT?


Will you hold your breath?

[job]

Ladies and gentlemen, here comes the Attorney General with the much awaited answer!

MINISTERIAL STATEMENT
Thursday 15th December, 2011.


UNCONSTITUTIONAL WITHDRAWAL OF FUNDS
FROM THE CONSOLIDATED FUND



Mr. Mbadi: On a point of order, Mr. Speaker, Sir. I had sought a Ministerial
Statement from the Attorney-General which he promised to give I in think two weeks
ago. Last Tuesday I reminded him, but he was not in the House. Hon. Ojode promised to
relay the information and it was promised that the Statement will be made today. That
Statement was with regard to the budgeting process and we are just in another circle. I
can see the Attorney-General is seated in the House today and is attentive. Could he
supply my Statement?




Mr. Speaker: Mr. Attorney-General, if you recollect that, would you like to give
an indication?




The Attorney-General (Prof. Muigai): Mr. Speaker, Sir, unfortunately, that
particular information was not relayed to me. However, I would like to assure the hon.
Member that as late as this morning I was talking with my officers about our
comprehensive Statement on that. It is almost ready and I could bring it to the House next
Tuesday.

[tnk]

Dec 17, 2011 0:05:23 GMT 3 job said:

Ladies and gentlemen, here comes the Attorney General with the much awaited answer!

MINISTERIAL STATEMENT
Thursday 15th December, 2011.


UNCONSTITUTIONAL WITHDRAWAL OF FUNDS
FROM THE CONSOLIDATED FUND



Mr. Mbadi: On a point of order, Mr. Speaker, Sir. I had sought a Ministerial
Statement from the Attorney-General which he promised to give I in think two weeks
ago. Last Tuesday I reminded him, but he was not in the House. Hon. Ojode promised to
relay the information and it was promised that the Statement will be made today. That
Statement was with regard to the budgeting process and we are just in another circle. I
can see the Attorney-General is seated in the House today and is attentive. Could he
supply my Statement?




Mr. Speaker: Mr. Attorney-General, if you recollect that, would you like to give
an indication?




The Attorney-General (Prof. Muigai): Mr. Speaker, Sir, unfortunately, that
particular information was not relayed to me. However, I would like to assure the hon.
Member that as late as this morning I was talking with my officers about our
comprehensive Statement on that. It is almost ready and I could bring it to the House next
Tuesday.

hehehe

the AG officially joins PLO in announcing that he will be announcing an announcement next week

AG makes a statement that he will be issuing a statement on the statement he was supposed to issue

stalling / stonewalling / he needs consult govt parrot for a 10 page hot air balloon

[job]

ON THE BRINK OF PARLIAMENT'S RECESS: December 22nd, 2011



Mr. Mbadi: On a point of order, Mr. Speaker, Sir... the Attorney-General
indicated last week that he would bring my statement I sought sometimes back but I
do not see him here.



Mr. Speaker: Professor Saitoti, you want to give a commitment on behalf of the
Attorney-General.
The Minister of State for Provincial Administration and Internal Security



(Prof. Saitoti): Mr. Speaker, Sir, once again, I will bring this matter to the attention of the
Attorney General.



Mr. Speaker: Similarly, let it be delivered on Thursday afternoon at 2.30 p.m.
The Minister of State for Provincial Administration and Internal Security
(Prof. Saitoti): Mr. Speaker, Sir, I will undertake to tell him so.

[job]

More than a month has elapsed since AG Githu has FAILED (refused/ducked) answering to this important question of how (& where to) taxpayer funds are leaving the Consolidated Fund.



He has gone missing in action when and where it counts.


Meanwhile, AG Githu Muigai is busy addressing press conferences attacking the CIC Chair, Charles Nyachae -- who is simply exercising his constitutional mandate as spelled out in our new Katiba.

[jonah]

Judge: Uhuru broke law - The Standard - 16.01.2012
www.standardmedia.co.ke/InsidePage.php?id=2000050086&cid=4

The Treasury has been spared further embarrassment after a judge dismissed a petition seeking to have it refund Sh368 billion to the Consolidated Fund, which is the Government’s main bank account.

But High Court judge Justice David Majanja was highly critical of Finance Minister Uhuru Kenyatta for breaching the Constitution through his selective application of its various articles.

The ruling also brings into focus Attorney General Prof Githu Muigai, who is the State’s chief legal advisor and the first respondent in the petition, with Uhuru listed as the second respondent.

Finance Minister Uhuru Kenyatta who was criticized by a High Court judge for failing to table an Appropriations Bill before withdrawing money from the Consolidated Fund

Justice Majanja was explicit that Uhuru, who is also the Deputy Prime Minister, should have tabled an Appropriations Bill as required by Article 221 of the Constitution, before seeking Parliament’s consent to withdraw money from the Consolidated Fund to finance Government operations.

"Every failure to follow the letter of the Constitution harms the Constitution itself, breeds cynicism and encourages impunity particularly when such failure stems from a deliberate effort to undermine the Constitution," said Justice Majanja.

In contrast, he only had kind words for National Assembly Speaker Kenneth Marende.

Majanja said the Speaker displayed a healthy and welcome respect for the rule of law, and the principle of separation of powers, despite giving Uhuru a window to escape the wrath of Parliament on June 7 last year.

The last word

However, said Justice Majanja "the Judiciary has the last word in the event of dispute on the interpretation and application of the Constitution."

He noted: "... the Constitution has ushered in a new era, not of Parliamentary supremacy, but one of supremacy of the Constitution. The superintendents of the Constitution are the courts of law which recognise that each organ in its own sphere working in accordance with law not only strengthens the Constitution, but ensures that the aspirations of Kenyans are met."

The judge was clear that his decision to dismiss the petition was not a vindication of Uhuru’s actions, but said he was unable to grant the petitioners their wish, as this would endanger the process of implementing the Constitution given that six months had passed since the incident.

"Preparations should now be made to comply with the provisions of the Constitution in the next financial year," ruled Justice Majanja.

Justice Majanja said annulling Parliament’s decision of June 14 would have set in motion "a chain reaction whose effects would be grave and more harmful to the implementation of the Constitution."

He quoted Articles 3, 10(1) and 20(4) of the Constitution which he said emphasises that everyone, including State officials like Uhuru, have an obligation to respect, uphold and defend the Constitution

He defended Speaker Marende saying that he acknowledged that the law had been broken by the Finance minister, but gave proper guidance "as is required by any officer of State acting in accordance with the Constitution."

On Sunday, political and civil society leaders challenged President Kibaki and Prime Minister Raila Odinga to ensure the Constitution is not broken.

Those who spoke to The Standard said the ruling delivered three weeks ago, but which escaped media scrutiny, brings to the fore questions about the commitment of the Executive to uphold the rule of the law and respect for the Constitution Kenyans endorsed in August 2010, hoping to end a culture of impunity.

"I therefore hold that for there to be compliance with Article 222, there must be an Appropriation Act or Bill in place and it was in breach of the Constitution to proceed to withdraw money from the Consolidated Fund without the existence of an Appropriation Act or Bill," said Majanja in the ruling delivered on December 23 two days before Christmas.

Defended treasury

The State defended the Treasury’s actions and sought a dismissal of the petition arguing it lacked merit, was frivolous and incompetent and that it was a transition period and no law was broken.

The State denied claims it violated the public’s right to participate in budget making process and the judge agreed. The next Budget cycle for the financial year 2012-2013 begins with a tabling by March 21 this year of the expenditure estimates for various ministries as well as the Parliamentary Service Commission and the Chief Registrar of the Judiciary under Standing Orders of Parliament.

Justice Majanja said that while the Appropriations Act as allows the Finance minister to seek Parliamentary approval to dip into the Consolidated Fund, he can only do so after tabling an Appropriations Bill, which Uhuru failed to do.

Two members of the civil society Jayne Mati of Mars Group and Dennis Adieno of the National Taxpayer’s Association moved to court to seeking orders to ensure the Executive complies with the Constitution.

Maragwa MP, Elias Mbau who chairs the Parliamentary Budget Committee agreed with the judge, saying that even though a mistake was made, it is not a licence for violation of the Constitution in future. Such mistakes, he said, were only tolerable because the country is transition.

"In this crucial and critical moment every institution is bending backwards a lit bit to accommodate others so as not to have the country crumble. But it is a warning to future ministers that the same leeway will not be granted in future," said Mbau.

Public scrutiny

The Executive Director of International Centre for Policy and Conflict, Mr Ndung’u Wainaina, dismissed the argument regarding the transition period, pointing out that it has been used by Government to evade public scrutiny.

"The argument about transition period doesn’t hold water. It is being used as an excuse to avoid public scrutiny, but the ruling is a statement to the Government that it must toe the line," said Wainaina.

The withdrawal of Sh368 billion from the Consolidated Fund represented one-half of the total net estimates of the Government’s recurrent and development expenditure.

Wainaina said MPs who legalised the appropriation of Sh368 billion championed their own interests and ignored the Constitution.

"They are doing everything in their own interest. These people have no regard for the law at all. They are used to shortcuts because they fear to be put under scrutiny," said Wainaina.

In his earlier memo to the Budget Committee in June, Mars Group Chairman Malibu Mati said the move was unconstitutional and asked it to intervene.

Nominated MP and Chairman of the Parliamentary Committee on Equal Opportunities, Mr Mohammed Affey hailed the court’s ruling pointing out that the culture of impunity must stop.

"No money should be used without following the law. It was wrong to allow this. The law is the law and it must be followed. I support the ruling," said Affey.

Another member of the Budget Committee, Subukia MP, Mr Nelson Gaichuhie, said the ruling reflected the reality given that Kenya is still transiting from the old order, but pointed out that it should not be allowed in future.

"Until we form the next Government, we are still in some form of mishap. We have to transform gradually even if we are to follow the law. The good thing is that the future will have a clear cut line of doing things," said Gaichuhie. click here to read the high court ruling www.standardmedia.co.ke/High_Court_Ruling.pdf

[kasuku]

Could this mean that Its over with Uhurus dreams of ever becoming Kenyas President? How can one who broke the law through disregarding the constitution ever be president

[job]

The ruling above is enough testimony of Uhuru Kenyatta's wanton abuse of the priviledges of Finance Minister, and outright impunity. Isn't it some misplaced sense of entitlement that drives one into dipping hands to appropriate Kenyan taxpayer funds without authority? This mta do nini attitude deserves more than just a slap on the wrist. The Consolidated Fund isn't a private dinner plate!



Another related disturbing development!


What shenanigans are heck going on at the Central Bank of Kenya (CBK)? Since CBK started the irregular hanky-panky business of opening the overnight deposit window to well-connected banks – paving way for the hoarding of foreign currency & devaluation of the shilling – something strange is again happening inside that opaque den. Kenyans are now being told about the shilling stabilizing and other rosy economic and fiscal statistics YET a very thick veil has been blanketed upon the public’s eye.



Every month, the CBK used to release a publication called the Monthly Economic Review. This document contained vital statistics that the public could use to evaluate the performance of our economy; including review of each sector. It contained data such as average bank interest rates; monthly inflation and trends; loan default rates; monthly imports and exports per sector; manufacturing output; vehicle imports; domestic debt & foreign debt; GDP growth in each sector; gold reserves; and performance of the shilling.



Since August 2011 – for the last five months- CBK has curiously stopped publishing this monthly report. Very suspicious indeed! What is this sudden love with opacity all about? This hiding of crucial economic and financial information is coinciding with the swing in value of the shilling and the coming to an end of Kibaki’s regime. What the heck is going on? This country needs total transparency, accountability, and fidelity to the law; especially during this year of transition.



Here is the last CBK Monthly Economic Review; published almost half a year ago.


www.centralbank.go.ke/downloads/publications/mer/2011/MerAug%202011.pdf

[phil]

If this was an ODM ministry there would be people falling over themselves demanding the minister step aside...Wamalwa demanding ministerial statements and Chris Okemo's committee issuing summons to the PS and his minister..and of course good old Jeremiah Kioni and (yes) Bonny Khalwale would be already be lining up a censure motion.

But hey, this is Kenya and that IS the 10th parliament.

[job]

Jan 16, 2012 22:56:33 GMT 3 phil said:

If this was an ODM ministry there would be people falling over themselves demanding the minister step aside...Wamalwa demanding ministerial statements and Chris Okemo's committee issuing summons to the PS and his minister..and of course good old Jeremiah Kioni and (yes) Bonny Khalwale would be already be lining up a censure motion.

But hey, this is Kenya and that IS the 10th parliament.

Well noted. Jukwaa's Uhuru apologists have given this thread a wide berth; as with other threads touching on mega corruption and impunity perpetrated by PNU's ruling elite. They are busy with power-play threads for instance: ...how Nancy Baraza's fall could tip the Supreme Court to conservatives favour;... how the election date could extend Kibaki's hold onto power;...how ICC could help secure Uhuru's run.

Any way...let's keep to the subject matter. I'd rather this important thread is not hijacked via sideshows. The point is; it is three months counting - Githu Muigai and Uhuru Kenyatta should at least have the courtesy to respect the people of Kenya; and directly answer their questions (forwarded by their elected representatives) in the floor of the House. These things need to go on record.

[job]

WITHDRAWAL OF FUNDS FROM
THE CONSOLIDATED FUND


The Attorney-General (Prof. Muigai): Mr. Speaker, Sir, it is a very short
Statement. It is a further Statement made at the request of Mr. Mbadi seeking a
Ministerial Statement from the Attorney-General on the withdrawal of funds from the
Consolidated Fund.


Mr. Speaker, Sir, further to my Statement before this House on 22nd November,
2011, I wish to add the following: Hon. Mbadi wanted a clarification as to whether this
House could give authority to withdraw funds on account without prior approval on the
Estimates and before the Appropriation Bill had been introduced in the House and
published, as was the case in the last financial year.


Mr. Speaker, Sir, I alluded last time to the provisions of Article 222(1) of the
Constitution. The Constitution provides for two situations in which funds may be
withdrawn from the Consolidated Fund in these circumstances, that is, where the
Appropriation Act has not been assented to and where the Appropriation Act is not likely
to be assented to. The monies in question were withdrawn on 14th June, 2011. As of the said date, the Appropriation Act for the financial year 1st July, 2011 to 30th June, 2012
had not been assented to as provided under Article 222 of the Constitution. The
Government sought authority from Parliament through a Vote on Account Motion dated
14th June, 2011, and Parliament gave its approval on 26th June, 2011. The consent of His
Excellency the President was sought and obtained for this particular Motion that was
debated and approved by this House on 16th June, 2011.


Mr. Speaker, Sir, the legality of this move was questioned in a matter that was
filed in the High Court of Kenya, in the Constitutional Division, this being, Jane Mati and
another versus the Attorney General and another, High Court Petition No.108 of 2011.


The High Court found that for there to be compliance with Article 222, there ought to be
an Appropriation Act or Bill in place, and it was in breach of the Constitution to proceed
to withdraw money from the Consolidated Fund without the existence of an
Appropriation Act or Bill. However, the High Court found that there had been substantial
and good faith compliance with the Constitution and the Constitution and its values had
not been threatened by the act of the Government. In the circumstances, the High Court
declined to grant the declarations sought in the petition. The High Court further stated:-

“To grant those declarations would insist on the austerity of tabulated legalism.”


Mr. Speaker, Sir, it is further worthy of note that on 7th June, 2011, you gave
directions on how the Budget process was to proceed in the interim transition period, that
is, in the life of this Parliament. I want to thank hon. Mbadi for drawing my attention to
this matter. I wish to state the Government considers itself bound by the findings and
ruling of the High Court. These findings and ruling have been brought to the attention of
the Treasury and we would hope that this irregularity will not be repeated in the future.
Thank you.


Mr. Speaker: Very well! Member for Gwasi, that should really rest the matter,
seriously.


Mr. Mbadi: Mr. Speaker, Sir, even though the Chair is trying to---


Mr. Speaker: Order! The Chair is not trying to do anything that is partial.
Proceed!


Mr. Mbadi: Thank you, Mr. Speaker, Sir. I will take that, but I still have
clarifications to seek from the Attorney General. With your permission, I will proceed.


Mr. Speaker: Carry on!


Mr. Mbadi: Mr. Speaker, Sir, the main reason this matter was raised--- I wish
that the Government had listened to me then, because the matter would have not even
gone to court.


Mr. Speaker, Sir, Article 222 which the Government based its decision on to
introduce a Vote on Account, envisages that this House should have passed the
Appropriation Bill and that the Vote on Account can only be given if the assent of the
President has not been given. But be that as it may and having recognized that the court
has made a ruling affirming the position which I informed the Government on earlier
enough, I would like the Attorney General to answer these two questions:-

1. Could he confirm that the Government, through the Attorney General’s Office,
and the Ministry of Finance, misled Parliament into legislating an illegality, by
passing a Vote on Account which, therefore, compromised the watchdog role of
Parliament?

2. What then would be the consequences of breaking the Constitution? How do we
deal with the Government departments and Ministries which deliberately violate
the provisions of the Constitution and break the law?


The Attorney General (Prof. Muigai): Mr. Speaker, Sir, first, I want to point out
that at the time that these unfortunate events happened, I was not the Attorney General.
But I do not wish to apportion blame. The Office of the Attorney General is an institution
and we take responsibility for the error that was committed.


Mr. Speaker, Sir, I believe that this was never a deliberate intention to mislead
Parliament and the Government. From all the evidence that has been available to me on
file, it would appear that it was an error that was inadvertent. It was a failure other than a
commission. I have undertaken to the hon. Member that we shall be more vigilant, and
that this sort of thing will be processed in a more professional manner in the future.


Mr. Speaker, Sir, the question of consequences was handled very well by the
court. Hon. Justice David Majanja, in his judgement, made a very clear distinction
between failure to implement constitutional provisions, that rendered those actions
necessarily liable to be repudiated and those that were errors that were within jurisdiction
and not necessarily called upon to be repudiated. The errors in this case, the Judge found,
were of the latter category. So, there are no consequences, except that this Parliament,
Treasury, my office and all of us involved must be more vigilant.
Thank you.